REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION , PRETORIA
CASE NO: 2026-147620
{l) REPORTABLE:~ / NO
{2) OF INTEREST TO OTHER JUDGES: ~ /NO
(3) REVISED: NO
DATE : 2 SEPTEMBER 2026
In the matter between:
VENUS MUTWANAMBA
and
AFHARE ELISA MOLEYA
FREEDOM MUYAMBO
TSHEPISO MATABANE
SIGNATURE:
THE MASTER OF THE HIGH COURT
TRANSNET SOC LIMITED
Appellant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
Fifth Respondent
1
2
Delivered: This judgment was prepared and authored by the Judge whose name is
reflected and is electronically circulated to the parties/their legal representatives by e-
mail and by uploading it to the electronic file of this matter on Caselines. The date for
hand-down is deemed to be 2 September 2026
___________________________________________________________________
JUDGMENT
MBOWENI AJ
INTRODUCTION
[1] This is an application for leave to appeal against the order granted by this Court on
2 July 2026 in urgent proceedings instituted by the First Respondent. The Appellant
was the First Respondent in the urgent application.
[2] The application for leave to appeal raises five principal grounds. Some of those
grounds incorporate more than one procedural or substantive objection. I deal with the
grounds in the order in which they are raised and against the chronology which
culminated in the order of 2 July 2026.
FACTUAL BACKGROUND
[3] Moambo Jabulani Moleya (“the deceased”) died on 28 May 2026 and was buried
on 6 June 2026. The First Respondent alleges that she was married to the deceased
by customary law and that the marriage was registered on 19 March 1990.
[4] The deceased left a Last Will and Testament. The will refers to the Appellant as his
second wife. The First Respondent alleges that she became aware of the alleged
second customary marriage through the will and disputes its validity principally on the
basis that she neither knew of nor consented to such marriage.
[5] Importantly, the validity of the deceased’s will is not challenged. The First
Respondent’s own founding case acknowledges the deceased’s right as testator to
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nominate beneficiaries. The distinction between the Appellant’s disputed marital status
and her separate testamentary interest under an unchallenged will is therefore
material.
[6] Following the deceased’s death, a dispute arose concerning vehicles, shops and
other property alleged to form part of the deceased estate. The First Respondent
alleged that the Appellant remained in possession and control of certain of these
assets and continued to utilise them.
[7] The First Respondent consequently approached this Court seeking urgent
interdictory relief. Her papers described the cars and shops in the Appellant’s
possession as assets constituting the deceased estate.
THE URGENT PROCEEDINGS
[8] The notice of motion was electronically filed on 25 June 2026. The application came
before this Court during the urgent-court week commencing on 29 June 2026.
[9] The directive applicable to that urgent-court week stipulated that matters which
were not trial-ready by 12h00 on Thursday, 25 June 2026 would not be enrolled unless
good cause or exceptional circumstances existed. It expressly provided that allocation
did not mean that a matter was regarded as sufficiently urgent and that the parties
remained required to address the Court on urgency.
[10] The directive further provided that parties were not at liberty to select the date
upon which their matter would be heard and prescribed the filing arrangements
applicable to opposed urgent matters.
[11] A further procedural feature assumes importance in this application. The First
Respondent’s notice of motion afforded 15 days for a response notwithstanding that
the application was thereafter pursued and determined upon a substantially shorter
urgent timetable.
[12] The Appellant opposed the application and raised preliminary objections relating,
amongst others, to urgency, the procedure adopted, the periods afforded for
4
opposition, citation and representative capacity, non-joinder, alternative remedies and
jurisdiction.
THE ORDER OF 2 JULY 2026 AND THE REASONS FOR PRESERVING THE
ESTATE
[13] On 2 July 2026 this Court granted interim relief restraining the Appellant from
disposing of or utilising property said to constitute the deceased estate, restrained
certain enquiries and dealings concerning benefits due to the deceased, directed the
closure of shops and the handing over of shop and vehicle keys, and restrained steps
concerning implementation of the will pending further order.
[14] It is appropriate to record briefly why the Court considered interim intervention
necessary at the time.
[15] The First Respondent alleged that the Appellant remained in possession and
continued to utilise vehicles and shops belonging to the deceased estate. She further
alleged that the Appellant had made enquiries concerning pension benefits and other
monies following the deceased’s death.
[16] The papers therefore presented the Court with a deceased estate whose
administration had not been finalised, a dispute concerning the status and rights of
persons asserting interests in that estate, and allegations that estate assets continued
to be utilised while those disputes remained unresolved.
[17] The First Respondent expressly alleged that continued possession and utilisation
of the assets created a risk of their depletion to the detriment of the estate and its
lawful beneficiaries.
[18] The immediate concern of the Court was accordingly preservation rather than final
determination. The Court was not called upon at that stage finally to determine whether
the Appellant was lawfully married to the deceased, nor finally to determine the parties’
respective succession rights.
[19] The purpose of the interim order was to preserve the res. If the assets were
alienated, dissipated or materially depleted before the substantive disputes were
5
determined, subsequent relief could become ineffective and the interests of all
persons ultimately entitled under the estate could be prejudiced.
[20] There was accordingly a proper basis for interim intervention directed at
preservation of the estate.
[21] That conclusion must, however, be distinguished from the separate question
arising in the application for leave to appeal as to whether every component of the
order was competent and whether the procedure by which that relief was obtained
was sufficiently justified.
[22] In particular, there is a material distinction between restraining the dissipation of
estate assets and directing that possession or control of those assets be transferred
from one interested person to another interested person rather than being preserved
under the control of the person lawfully authorised to administer the estate.
TEST FOR LEAVE TO APPEAL
[23] Section 17(1)(a)
1 provides that leave to appeal may be granted where the Court
is of the opinion that the appeal would have a reasonable prospect of success or where
there is some other compelling reason why the appeal should be heard.
[24] In Ramakatsa and Others v African National Congress and Another 2, the
Supreme Court of Appeal held that the enquiry requires a dispassionate assessment
of the facts and law to determine whether an appellate court could reasonably arrive
at a different conclusion. The prospects must not be remote and there must be a sound
and rational basis for concluding that there are reasonable prospects of success.
[25] In Caratco (Pty) Ltd v Independent Advisory (Pty) Ltd3 , the Supreme Court of
Appeal confirmed the distinction in s 17(1)(a) between reasonable prospects of
success and the existence of some other compelling reason why an appeal should be
heard.
1 Superior Courts Act 10 of 2013.
2 (724/2019) [2021] ZASCA 31.
3 (982/18) [2020] ZASCA 17; 2020 (5) SA 35 (SCA).
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[26] More recently, in Firstrand Bank Limited v Frame and Another 4 (Application
for Leave to Appeal), the Gauteng Division reaffirmed that s 17(1)(a) imposes a
stringent threshold and that something more than an arguable case or a mere
possibility of success is required.
[27] The enquiry in the present matter is accordingly whether there is a realistic and
rational prospect that another court, applying the law to the facts and issues raised,
may arrive at a different conclusion.
GROUND 2.1: THE NATURE AND FINALITY OF THE INTERDICT
[28] The Appellant’s first ground is that the Court erred in finding that the First
Respondent was entitled to interdictory relief when the orders granted were final in
nature notwithstanding that Part B remained pending.
[29] The order did not finally determine whether the Appellant was validly married to
the deceased. It did not finally determine the respective succession rights of the parties
and did not finally determine the validity or interpretation of the will.
[30] The prohibitions against disposal and utilisation of estate assets and against
implementation of aspects of the will were predominantly preservatory.
[31] I accept, however, that the provision directing the handing over of shop and
vehicle keys had an immediate mandatory effect and altered possession or control of
property. That aspect is more appropriately considered under ground 2.4, which
expressly challenges the return of property in the context of the Appellant’s interest
under the will.
[32] I am not persuaded that another court would reasonably conclude that the order
in its entirety was final.
[33] Ground 2.1 is accordingly dismissed.
4 (2024/100304) [2026] ZAGPJHC 463 (7 May 2026).
7
GROUND 2.2: NOTICE OF MOTION, DIES INDUCIAE AND PROCEDURAL
FAIRNESS
[34] The Appellant contends that the Court erred in entertaining the application upon
a defective notice of motion which did not properly afford time for notice of opposition,
points of law and an answering affidavit.
[35] Rule 6(12) permits a court in urgent proceedings to dispense with the ordinary
forms and periods prescribed by the Uniform Rules. It follows that the ordinary dies
induciae applicable to non-urgent motion proceedings do not automatically apply.
[36] That power is not unbounded. The foundational authority remains Luna Meubel
Vervaardigers (Edms) Bpk v Makin and Another (t/a Makin’s Furniture
Manufacturers) 1977 (4) SA 135 (W), where the Court explained that the degree of
relaxation of the Rules must be commensurate with the exigencies of the particular
case.
[37] That principle remains consistently applied. In Matjee and Others v M.O.K.M and
Others
5, this Division reaffirmed that an applicant invoking Rule 6(12) must establish
in the founding papers the circumstances rendering the matter urgent and why
substantial redress cannot be obtained in due course. The departure sought from
ordinary procedure must therefore be justified by the urgency established on the
papers.
[38] Similarly, in Visagie and Others v Office Manager, Department of Economic
Development, Environment, Conservation and Tourism, Vryburg Office, North
West and Others
6 the Court reiterated that urgency is a matter of degree and that the
extent to which ordinary procedural requirements may properly be relaxed depends
upon the exigencies demonstrated in the particular case.
[39] Rule 6(12) therefore does not dispense with procedural fairness. A respondent
must be informed with reasonable certainty of the timetable upon which opposition is
required, and the extent of any truncation must be justified by the degree of urgency
demonstrated.
5 (2024-045858) [2026] ZAGPPHC 162 (20 February 2026).
demonstrated.
5 (2024-045858) [2026] ZAGPPHC 162 (20 February 2026).
6 (2026/179771) [2026] ZANWHC 219 (24 August 2026).
8
[40] This is consistent with Mogalakwena Local Municipality v Provincial
Executive Council, Limpopo and Others7 ,where this Division emphasised that the
respondent’s ability adequately to present its case within the time afforded remains a
relevant consideration in determining urgency.
[41] In this case, the notice of motion afforded the Appellant 15 days within which to
respond.
[42] That period is difficult to reconcile with the subsequent pursuit and determination
of the application upon a materially shorter timetable.
[43] If the First Respondent intended to afford the Appellant 15 days to respond, the
application could not consistently be determined before expiration of that period
without an appropriate and adequately justified alteration of the timetable.
[44] Conversely, if the First Respondent’s case was that circumstances required
judicial intervention within a matter of days, the notice of motion ought clearly to have
stipulated the truncated periods upon which the Appellant was expected to act.
[45] The fact that the Appellant ultimately succeeded in delivering opposition does not
necessarily cure the procedural difficulty. Actual participation does not invariably
establish that the procedure adopted was fair.
[46] There is consequently a reasonable prospect that another court may conclude
that the procedure adopted was internally inconsistent and that the truncation of the
Appellant’s procedural rights had not adequately been justified.
[47] Ground 2.2 is accordingly upheld.
GROUND 2.3: THE POINTS IN LIMINE
Urgency
[48] The Appellant contends that the matter should not have been entertained with the
degree of urgency accorded to it.
7 (35248/14) [2014] ZAGPPHC 400; [2014] 4 All SA 67 (GP).
9
[49] The allegations concerning continued utilisation and possible depletion of estate
assets were sufficient, in my view, to establish urgency in the broad sense. The First
Respondent alleged that continued possession and utilisation threatened prejudice to
the estate and its beneficiaries.
[50] The question raised by the application for leave to appeal is narrower: whether
the matter possessed the degree of urgency necessary to justify the particular
timetable upon which it was heard.
[51] The distinction is significant. As recently reaffirmed in Visagie, urgency is a matter
of degree. The question is therefore not simply whether the matter was urgent, but
whether the demonstrated urgency justified the particular departure from ordinary
procedure.
[52] The same principle emerges from Matjee. Rule 6(12) requires the applicant to
establish the circumstances rendering the matter urgent and why substantial redress
cannot be obtained through proceedings in the ordinary course.
[53] The applicable urgent-court directive expressly provided that allocation did not
constitute a finding that the matter was sufficiently urgent and required the parties to
address urgency.
[54] A distinction must therefore be drawn between a matter which cannot await
determination in the ordinary motion court and a matter which is so urgent that it
cannot even await the ordinary urgent-court timetable.
[55] The matter was heard on Thursday. The ordinary Tuesday urgent roll was only a
few court days away.
[56] The First Respondent was therefore required to demonstrate why the estate faced
such an immediate threat that the application could not wait until the following
Tuesday.
[57] The allegations demonstrated a need for reasonably prompt preservation.
Another court may nevertheless conclude that they did not establish a threatened
event or imminent dissipation during those few intervening days sufficient to justify the
exceptional timetable adopted.
10
[58] The 15 -day response period contained in the First Respondent’s own notice of
motion reinforces the difficulty. It is difficult to reconcile an express indication that the
opposing party has 15 days to respond with the proposition that the matter could not
wait a few days for the ordinary urgent roll.
[59] I am therefore satisfied that another court may reasonably conclude that, although
urgency existed, the degree of urgency necessary to justify the particular enrolment
was not established.
[60] The urgency component of ground 2.3 is accordingly upheld.
Citation and Representative Capacity — Nomino Officio
[61] The Appellant further contends that the proceedings were defective in relation to
the citation of persons concerned with the administration of the deceased estate, in
that they were not properly cited in their representative capacities nomino officio.
[62] This complaint requires a distinction between personal and representative
capacity.
[63] An executor who institutes or defends proceedings concerning rights or
obligations of a deceased estate ordinarily acts in a representative capacity. The
designation “N.O.” reflects that the person is cited nomino officio, by virtue of the office
held, rather than personally.
[64] The mere omission of the letters “N.O.” does not necessarily invalidate
proceedings. Substance remains important. If the pleadings as a whole make the
representative capacity unmistakably clear, an error in nomenclature may not be fatal.
[65] The significance of capacity in deceased-estate litigation has recently been
considered in L.D.K NO v M.J.S and Others
8. The judgment distinguishes between
a person cited personally and that person cited nomino officio in a representative
capacity as executrix. The distinction is substantive where the relief concerns rights or
obligations attaching to the office of executor.
8 (018360/2025) [2026] ZAWCHC 397 (6 August 2026).
11
[66] L.D.K NO also reaffirms the general position recognised in Gross and Others v
Pentz9 that an executor ordinarily represents a deceased estate in litigation, subject
to limited circumstances in which a beneficiary may have standing to act in protection
of the estate.
[67] The difficulty in the present matter is that representative capacity bears directly
upon the substantive relief. The property concerned was alleged to belong to the
deceased estate and the order directly affected both possession of estate assets and
implementation of the will.
[68] If persons responsible for administration of the estate were cited merely in their
personal capacities, while relief was sought against them in relation to functions
exercisable only in their representative capacities, another court may reasonably
conclude that the defect was material rather than merely descriptive.
[69] The point also intersects with the question whether assets belonging to the estate
could properly be ordered into the personal possession of the First Respondent.
[70] I do not find that omission of the suffix “N.O.” automatically rendered the
proceedings a nullity. I find that, in the circumstances of this particular dispute, the
capacity in which the relevant parties were cited and against which estate-related relief
was granted presents an arguable issue warranting appellate consideration.
[71] The representative-capacity or N.O. argument advanced under ground 2.3 is
accordingly upheld.
Non-joinder
[72] The Appellant further complains of the non-joinder of the deceased estate.
[73] This issue must be distinguished from the representative-capacity objection.
[74] The general test for compulsory joinder is whether the person concerned has a
direct and substantial legal interest in the order which the Court may make. That
9 1996 (4) SA 617 (A).
12
principle was reaffirmed by the Constitutional Court in National Union of Metalworkers
of South Africa v Intervalve (Pty) Ltd and Others10.
[75] A deceased estate is not an independent juristic person which must invariably be
cited in its own name. It is ordinarily represented in litigation by the duly authorised
executor acting nomino officio.
[76] The more substantial question is therefore whether the appropriate person
responsible for the estate was properly before Court in a representative capacity,
rather than whether the estate itself ought to have been cited as though it were a
separate legal persona.
[77] The non-joinder component of ground 2.3 is accordingly dismissed.
Alternative remedy
[78] The Appellant further contends that the First Respondent had an adequate
alternative remedy.
[79] I am not persuaded that this objection independently carries reasonable prospects
of success.
[80] Where the apprehended harm is the possible depletion, alienation or dissipation
of property forming part of a deceased estate, relief obtained only after the assets
have disappeared may not provide substantial redress.
[81] The existence of ordinary mechanisms of estate administration therefore did not
necessarily preclude appropriate interim preservation.
[82] The alternative-remedy component of ground 2.3 is dismissed.
GROUND 2.4: THE UNCHALLENGED WILL, LOCUS STANDI AND CONTROL OF
ESTATE ASSETS
10 [2014] ZACC 35; 2015 (2) BCLR 182 (CC).
13
[83] Ground 2.4 is material. The Appellant contends that the Court erred in directing
the return of property notwithstanding that she is a beneficiary under the deceased’s
will and the will itself has not been challenged in either Part A or Part B.
[84] The issue requires a distinction between marital status, testamentary interest,
personal standing and authority to administer estate property.
[85] The First Respondent has a direct and substantial interest in determining whether
the Appellant was lawfully married to the deceased. Her standing to protect her own
matrimonial and succession rights cannot seriously be disputed.
[86] That personal standing does not necessarily confer upon the First Respondent
representative authority to recover, receive or administer property belonging to the
deceased estate.
[87] The distinction between personal interest and representative authority is
reinforced by the recent decision in Sihele Properties (Pty) Ltd and Another v LP
Properties (Pty) Ltd and Another
11. The Court recognised that, following
appointment, the executor assumes control and custody of property forming part of
the deceased estate and ordinarily represents the estate in litigation affecting such
property.
[88] That principle accords with the established position in Gross v Pentz that the
executor ordinarily acts on behalf of the estate and with Gory v Kolver NO and
Others
12 in which the Constitutional Court recognised the executor’s responsibility in
relation to the administration of estate property.
[89] The First Respondent’s own papers characterised the cars and shops in question
as estate assets.
[90] The order nevertheless required control of certain of those assets to be transferred
to the First Respondent personally.
[91] The Appellant’s position requires a corresponding distinction.
11 (1442/2025) [2025] ZAECMKHC 93 (14 August 2025).
12 [2006] ZACC 20; 2007 (4) SA 97 (CC).
14
[92] The validity of her alleged customary marriage to the deceased is disputed. The
validity of the deceased’s will is not.
[93] It does not necessarily follow that a finding that the Appellant was not lawfully
married to the deceased would extinguish a testamentary disposition in her favour.
[94] Whether the deceased’s description of the Appellant as his “second wife” merely
identifies the intended beneficiary or whether valid marital status constitutes a
condition of the particular testamentary disposition is a matter of interpretation of the
will.
[95] That issue was not finally determined in the urgent application.
[96] The Appellant therefore possesses a direct testamentary interest independent of
the ultimate determination of her marital status.
[97] Her position as beneficiary does not, however, entitle her to administer, alienate
or utilise property belonging to the estate. A beneficiary’s interest and the executor’s
authority to administer an estate are distinct.
[98] The same applies to the First Respondent. Her asserted status as surviving
spouse and her standing to protect her personal rights do not necessarily confer upon
her the powers of the executor.
[99] The recent decisions in Sihele Properties and L.D.K NO reinforce that
distinction. The legal interest which a spouse or beneficiary may have in the outcome
of estate administration is not synonymous with the representative authority of an
executor over the property of the estate.
[100] The question arising on appeal is therefore not whether preservation of the
estate was justified. For the reasons already given, the Court had a legitimate basis to
intervene to preserve the estate.
[101] The question is whether the estate should have been preserved by transferring
possession or control of its property from the Appellant to the First Respondent
personally, rather than by preserving it under the control of the person lawfully
authorised to administer the estate.
15
[102] That question is strengthened by the representative-capacity issue. Where
litigation concerns the possession and administration of estate property, the capacity
in which the executor or persons responsible for administration are before Court is
material.
[103] There is consequently a reasonable prospect that another court may conclude
that preservation was justified but that the mandatory component of the order directing
delivery to the First Respondent personally was not the appropriate form of
preservatory relief.
[104] Ground 2.4 is accordingly upheld.
GROUND 2.5: JURISDICTION
[105] The Appellant’s fifth ground is that this Division lacked jurisdiction because the
material parties reside outside its territorial jurisdiction, the deceased estate was
reported in Thohoyandou, Limpopo Province, and the cause of action did not arise
within this Division.
[106] The fact that the estate was reported in Limpopo is not, standing alone,
dispositive. Nor is residence the only jurisdictional connecting factor.
[107] Section 21(1)
13, provides the statutory starting point for determining the territorial
jurisdiction of a Division. The enquiry nevertheless remains whether there exists a
legally recognised jurisdictional connection between the dispute and the Court.
[108] The Supreme Court of Appeal recently considered these principles in Organi
Mark (Pty) Ltd v Goolam Nabi Ebrahim Akoodie and Another 14. The Court held
that the presence or residence of a party within the territorial area does not necessarily
resolve the jurisdictional enquiry where the substantive dispute lacks the required
jurisdictional connection with that Court.
[109] Organi Mark confirms that some legally recognised ratio jurisdictionis must
exist connecting the cause to the Court. The Supreme Court of Appeal found in that
13 Superior Courts Act.
14 (240/2023) [2024] ZASCA 44 (8 April 2024).
16
matter that, notwithstanding the respondents’ residence within the area of jurisdiction
of the Gauteng Division, there was nothing linking that Court to the substantive
statutory claim sought to be enforced.
[110] That approach is consistent with the earlier decision in Gallo Africa Ltd and
Others v Sting Music (Pty) Ltd and Others
15, in which the Supreme Court of Appeal
explained that effectiveness lies at the root of jurisdiction but does not, without an
appropriate ratio jurisdictionis, necessarily establish jurisdiction.
[111] The enquiry in the present matter is accordingly not resolved merely by
identifying one respondent with some connection to Gauteng. The Court must
examine the substantive dispute, the cause of action, the parties against whom
substantive relief is sought and the territorial connection between those matters and
this Division.
[112] The citation of the Master of the High Court, Pretoria or Transnet SOC Limited
cannot by itself create jurisdiction over the substantive dispute if the necessary
jurisdictional connecting factors are otherwise absent.
[113] Having regard to the jurisdictional challenge raised by the Appellant, the
reporting and administration of the estate in Thohoyandou and the alleged absence of
a material cause of action within Gauteng, I am satisfied that another court may
reasonably reach a different conclusion concerning jurisdiction.
[114] I emphasise that this is not a final finding that this Division lacked jurisdiction.
The question at this stage is whether there is a reasonable prospect that an appellate
court may reach a different conclusion. In my view, applying the principles reaffirmed
by the Supreme Court of Appeal in Organi Mark, that threshold is met.
[115] Ground 2.5 is accordingly upheld.
CONCLUSION
[116] The application for leave to appeal succeeds in part.
15 [2010] ZASCA 96; 2010 (6) SA 329 (SCA).
17
[117] It remains important to distinguish the justification for preservation of the estate
from the particular means by which preservation was achieved. The allegations before
the Court concerning continued utilisation and possible depletion of estate assets
justified interim protective intervention.
[118] The grant of leave to appeal therefore does not amount to a conclusion that the
estate ought to have been left without protection. It reflects the existence of reasonable
prospects that another court may differ concerning the procedure followed and
aspects of the form and reach of the order.
[119] Ground 2.1 is dismissed. The order did not finally determine the substantive
disputes in their entirety.
[120] Ground 2.2 is upheld because another court may reasonably conclude that the
15-day response period contained in the notice of motion was inconsistent with the
substantially truncated timetable actually followed and that the resulting procedural
position was insufficiently justified. The recent decision of this Division in Matjee, read
with Luna Meubel and the recent application of those principles in Visagie, reinforces
the requirement that the particular degree of procedural truncation must be justified by
the urgency established.
[121] Ground 2.3 succeeds insofar as it concerns the degree of urgency and the
representative capacity or N.O. issue. It fails insofar as it concerns the separate
contention that the deceased estate itself ought to have been joined and the contention
that the First Respondent possessed an adequate alternative remedy.
[122] Ground 2.4 is upheld because another court may reasonably conclude that,
although preservation of the estate was warranted, delivery of estate assets to the
First Respondent personally was not the appropriate mechanism. The distinction
between personal interest in a deceased estate and the executor’s representative
authority over estate property is reinforced by Sihele Properties, L.D.K NO, Gross v
Pentz and Gory.
Pentz and Gory.
[123] Ground 2.5 is upheld because the jurisdictional challenge is reasonably capable
of producing a different conclusion on appeal. The recent SCA judgment in Organi
Mark confirms that the jurisdictional enquiry requires an appropriate ratio
18
jurisdictionis and cannot be resolved merely by the presence within the territorial area
of a person who has been cited as a party.
[124] These issues are material and sufficiently interconnected to warrant
consideration by an appellate court.
[125] I am accordingly satisfied that the requirements of s 17(1)(a) of the Superior
Courts Act have been established in respect of the identified grounds.
ORDER
In the result, I make the following order:
1. The application for leave to appeal is granted in part.
2. The Appellant is granted leave to appeal to the Full Court of the Gauteng
Division of the High Court, Pretoria, in respect of:
2.1 Ground 2.2 concerning the notice of motion, dies induciae and procedural
truncation;
2.2 Ground 2.3 insofar as it concerns:
2.2.1 the degree of urgency and the justification for departure from the
applicable urgent-court procedure; and
2.2.2 the citation and representative capacity nomino officio of the
persons responsible for administration of the deceased estate;
2.3 Ground 2.4 concerning the unchallenged Last Will and Testament, the
respective locus standi of the parties, and the order transferring possession or
control of estate assets to the First Respondent; and
2.4 Ground 2.5 concerning the jurisdiction of this Division.
3. Leave to appeal is refused in respect of:
3.1 Ground 2.1 insofar as it contends that the order was final in its entirety;
3.2 Ground 2.3 insofar as it concerns the alleged non-joinder of the deceased
estate; and
3.3 Ground 2.3 insofar as it concerns the existence of an adequate alternative
remedy.
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4. The costs of the application for leave to appeal shall be costs in the appeal.
________________________
LJ MBOWENI AJ
ACTING JUDGE OF THE HIGH COURT,
GAUTENG DIVISION, PRETORIA
Heard on: 31 August 2026
Delivered: 2 September 2026
Appearances:
Counsel for the Appellant: Adv Musetha
Instructed by H.J Mbonzhe Attorneys
Counsel for the First Respondent: Adv R Maruma
Instructed by Motimele Masete Attorneys